United States District Court, S.D. Georgia, Augusta Division
RANDAL, CHIEF JUDGE.
careful, de novo review of the file, the Court
concurs with the Magistrate Judge's Report and
Recommendation, to which objections have been filed, (doc.
no. 11). The Magistrate Judge recommended dismissing the
complaint for failure to state a claim upon which relief may
be granted because (1) Plaintiffs claims are time-barred by
the applicable two-year statute of limitations, and (2) even
if the claims were not time-barred, Lincoln County Law
Enforcement Center ("LEC") is not subject to
liability in a § 1983 lawsuit. (See doc. no.
first argues he requested a form from the Clerk of Court, but
never actually filed, an amendment to his complaint to
"properly" state a claim against Defendant Hunter
to make clear he is alleging a claim for cruel and unusual
punishment and violation of his bodily privacy. (Doc. no.
11.) However, even if Plaintiff had amended his complaint in
the manner he describes, the Magistrate Judge never addressed
the substance of Plaintiffs claims against Defendant Hunter
because of the untimeliness of the allegations. (See doc. no.
9.) Amending details to clarify the type of civil rights
complaint Plaintiff wishes to make against Defendant Hunter
does not cure the statute of limitations problem upon which
the Magistrate Judge primarily relied to recommend dismissal.
asserts in his objections he is entitled to equitable tolling
of the two-year statute of limitations for his claims arising
on September 19, 2015, and ending no later than June 21,
2016. According to Plaintiff, he was unable to obtain
"vital information" about the dates and officers
involved in Plaintiffs alleged mistreatment at LEC until
September 12, 2018. (Doc.no. 11.) In support of his
request for equitable tolling, Plaintiff provides copies of
letters he wrote to Lincoln County officials, dated February
29, 2016, August 15, 2017, September 5, 2017, and May 7,
2018, requesting information about an investigation into
unspecified deprivation of rights Plaintiff allegedly
experienced while detained at LEC. (Doc. no. 11-1, pp. 1-4.)
Plaintiff also attaches a copy of an envelope and a list of
tracking numbers purporting to show he received some type of
"papers" from the Lincoln County Sheriffs Office on
September 12, 2018. (Id. at 5-6.)
general test for equitable tolling requires the party seeking
tolling to prove that: (1) he has been pursuing his rights
diligently, and (2) some extraordinary circumstance stood in
his way and prevented timely filing." Rager v.
Augustine, -F. App'x-, No. 18-10834, 2019 WL 413750,
at *2 (11th Cir. 2019) (per curiam) (citing
Villarreal v. R.J. Reynolds Tobacco Co.. 839 F.3d
958, 971 (11th Cir. 2016)). In other words, "Equitable
tolling is appropriate when a movant untimely files because
of extraordinary circumstances that are beyond his control
and unavoidable even with diligence, which the plaintiff
bears the burden of showing. Id. at *3.
is not entitled to equitable tolling because he has not
pursued his rights diligently. First, Plaintiff does not
identify what "vital information" he was unable to
obtain until September 12, 2018. As the Magistrate Judge
explained, Plaintiff knew or should have known of the alleged
improper sexual touching by an officer at LEC on the date the
event occurred, as Plaintiff was obviously present for the
encounter. Moreover, Plaintiff concedes he reported the
events to LEC officials when it occurred, so he had enough
information at that time to sufficiently identify the officer
allegedly involved. (See doc. no. 1, p. 4.)
there are long periods of time separating the dates of
Plaintiffs inquiries to Lincoln County officials. After
writing a letter on February 29, 2016, requesting an
investigative report, the next responsive letter is dated
August 15, 2017, nearly one and a half years later. (Doc. no.
11-1, pp. 1-2.) Not only does Plaintiff fail to provide any
information showing he pursued information for his case
during that year and a half, but the August 15th letter
explains the information may have been turned over to
Plaintiffs attorney in 2016. (Id. at 2.) Plaintiff
does not even suggest he checked with his attorney.
as thoroughly explained in the Report and Recommendation,
Plaintiffs claims for events occurring at LEC on September
19, 2015, and ending at the latest on June 20, 2016, are
time-barred by the two-year statute of limitations. "To
dismiss a prisoner's complaint as time-barred prior to
service, it must appear beyond a doubt from the complaint
itself that the prisoner can prove no set of facts which
would avoid a statute of limitations bar." Sensi v.
Fla. Officers of Court. 737 Fed.Appx. 433, 437 (11th
Cir. 2018) (per curiam) (citing Hughes v.
Lott. 350 F.3d 1157, 1163 (11th Cir. 2003)). Not only is
it clear from the face of the complaint Plaintiff had the
information he needed to file his federal complaint well
before expiration of the statute of limitations, but the
documentation attached to Plaintiffs objections clearly shows
Plaintiff failed to pursue his rights diligently in seeking
out any additional information about his claims, particularly
when there is no explanation as to what information he
allegedly needed to obtain.
the Court OVERRULES all of Plaintiff s objections and ADOPTS
the Report and Recommendation of the Magistrate Judge as its
opinion. Therefore, the Court DISMISSES Plaintiffs complaint
for failure to state a ...